Hansen v. Patrissi

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 89-363
 
 
Craig Hansen                                 Supreme Court
 
     v.                                      On Appeal from
                                             Caledonia Superior Court
Joseph Patrissi, Commissioner,
Vermont Department of Corrections;           February Term, 1990
Raymond Pilette, Superintendent,
St. Johnsbury Correctional Facility
 
 
Matthew I. Katz, J.
 
Walter M. Morris, Jr., Defender General, Jeffrey Dworkin, Prisoners' Rights
 Office, and Michael Cassidy, Law Student Intern (On the Brief), Montpelier,
 for plaintiff-appellee
 
Jeffrey L. Amestoy, Attorney General, Montpelier, and John W. Kessler,
 Assistant Attorney General, Waterbury, for defendants-appellants
 
 
PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.
 
 
     GIBSON, J.   The State appeals a superior court judgment granting
plaintiff's habeas corpus petition and expunging a prison hearing officer's
determination that plaintiff was guilty of escape.  Upon review of the
record, we conclude that the decision of the superior court must be vacated.
     Plaintiff was furloughed from the St. Johnsbury prison from Sunday,
November 13, 1988 at 7:00 p.m. until Sunday, November 27, 1988 at 7:00 p.m.
On November 23, a prison official ordered plaintiff to return to the prison
after plaintiff's parole officer had reported seeing plaintiff operating a
motor vehicle in violation of his furlough.  Plaintiff did not return to the
prison until Monday, November 28 at approximately 1:00 p.m.  He was charged
with violating the Department of Corrections' disciplinary infraction
"Escape, including 'walkaway' from furlough."
     Following a disciplinary hearing, a prison hearing officer found
plaintiff guilty of escape.  Plaintiff appealed that determination to the
Commissioner of Corrections and, while the appeal was pending, filed a
habeas corpus petition in superior court on December 29, 1988, alleging that
prison officials had infringed on his constitutional rights by arbitrarily
charging him with escape rather than tardy return from furlough.  On January
9, 1989, the Commissioner ordered a rehearing of the matter, stating: "It is
not clear to me that the facts contained in the documentation for this
appeal are adequately represented in the report of the Hearing Officer."  A
second hearing was held on January 13, 1989, and the hearing officer again
found plaintiff guilty of escape.
     Plaintiff then amended his habeas corpus petition, and filed a motion
for summary judgment, arguing that it was improper for the Corrections
Department to have held a second disciplinary hearing when there had been
insufficient evidence at the first hearing to convict him of escape.  Ruling
solely on the decision made at the first hearing, the Caledonia Superior
Court granted plaintiff's petition, stating that there was no evidence of
an intent by plaintiff to leave custody.  We conclude that the court's
ruling was clearly erroneous for two reasons: (1) plaintiff's belated return
to custody constitutes prima facie evidence of intent to escape, requiring
that he come forward with a satisfactory explanation to rebut this evidence;
and (2) the merits of the first hearing were not properly before the trial
court for review in the habeas corpus proceeding.
     The element of intent to escape from custody may be inferred from a
prisoner's unauthorized extension of a furlough if there is no satisfactory
explanation for the extension, even where the prisoner ultimately returns
voluntarily.  See Commonwealth v. Meranda, 2 Mass. App. Ct. 890, 891, 318 N.E.2d 926, 927 (1974) (intent to escape sufficiently established where
furloughed prisoner voluntarily returned to custody a full day after
expiration of the furlough period); cf. State v. Lakin, 131 Vt. 82, 85-86,
300 A.2d 554, 556 (1973) (evidence that prison officials tolerated
prisoners' temporary unauthorized absences from minimum security facility to
purchase merchandise might show defendant's lack of intent to escape where
he left for short time to purchase alcohol).  Inasmuch as plaintiff did not
return to the prison until five days after he had been ordered to do so and
one day after his furlough period had ended, the burden fell upon plaintiff
to offer a satisfactory explanation for his delayed return.  The trial court
did not address this issue.  The court's ruling that there was no evidence
of plaintiff's intent to leave custody was clearly erroneous.
     Plaintiff characterizes the Commissioner's action following the first
hearing as an order for a rehearing based on insufficient evidence, and
argues that such an action was improper.  See Hartje v. Coughlin, 70 N.Y.2d 866, 868, 517 N.E.2d 1348, 1348, 523 N.Y.S.2d 462, 463 (1987) (rehearing of
disciplinary decision to allow prison officials to present additional
evidence unaccountably withheld at first hearing was improper).  But cf.
Smith v. Coughlin, 137 A.D.2d 938, 939, 525 N.Y.S.2d 360, 361-62 (1988)
(distinguishing Hartje, court held that rehearing, rather than expungement,
was proper where hearing officer had erroneously refused to admit certain
relevant evidence).  The State concedes, and we agree, that it would be
improper to order a rehearing solely because insufficient evidence had been
presented at the first hearing.  When the Commissioner stated, however, that
he thought the facts were not "adequately represented in the report of the
Hearing Officer," his ruling clearly went to the adequacy of the hearing
officer's findings of fact, not the sufficiency of the evidence at the
first hearing, and the remand for a second hearing was perfectly proper.
Cf.  Duval v. Duval, 149 Vt. 506, 511, 546 A.2d 1357, 1361 (1988) (reversal
and remand for rehearing appropriate remedy where trial court fails to make
necessary findings, leaving Court to speculate as to basis of decision);
Saufroy v. Town of Danville, 148 Vt. 624, 626, 538 A.2d 168, 169 (1987)
(reversal and remand ordered where inadequate findings were made by Board of
Appraisers).  Consequently, the first hearing having been nullified, the
issues concerning that hearing were not properly before the superior court.
     The order of the superior court is vacated.
 
 
 
                                 FOR THE COURT:
 
                                 ________________________________________
                                 Associate Justice